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2019 DIGILAW 1011 (JHR)

Sanika Lohra S/o Bahura Lohra v. State of Bihar

2019-05-09

DEEPAK ROSHAN, SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. The sole appellant namely, Sanika Lohra has challenged the judgment of his conviction under section 302 IPC and the order of sentence of R.I. for life, both dated 03.06.1995 in Sessions Trial No. 41 of 1994 passed by the learned 7th Additional Judicial Commissioner, Ranchi. 2. By an order dated 08.11.2004, the appellant was released on bail. 3. The case of the prosecution is narrated in the ferd-beyan of Koili Orain, the wife of Sakhwa Oraon, the deceased. In her ferd-beyan recorded on 15.08.1993 at 3.30 p.m. she has stated that the appellant-Sanika Lohra came inside her house and killed her husband who was sleeping in his room and when she raised cry several villagers including her daughter and son-in-law arrived there and they have seen the appellant-Sanika Lohra fleeing away outside her house. On the basis of her ferd-beyan, a First Information Report being Lapung P.S Case No. 20 of 1993 was lodged against the appellant under section 302 IPC and after the investigation the appellant has been sent-up for trial. During trial the prosecution has examined six witnesses, the informant-Koili Orain is PW-1 and her son-in-law namely, Karma Oraon is PW-4. The doctor who has conducted autopsy over the dead body is PW-5 and the investigating officer has been examined as PW-6. 4. The learned 7th Additional Judicial Commissioner, Ranchi has found PW-1 and PW-2 reliable eye-witnesses and on the basis of the evidences laid before him, he has convicted the accused-appellant under section 302 IPC. 5. Ms. Amrita Banerjee, the learned Amicus has contended that the eye-witnesses projected by the prosecution have in fact not seen the occurrence and when discrepancies in their evidence are examined in the light of the lacuna in the prosecution case, a reasonable doubt is created on complicity of the appellant in the crime. 6. The informant who is none other than wife of the deceased-Sakhwa Oraon has stated that she has seen the appellant assaulting her husband with dauli, however, in paragraph no. 9 of her cross-examination she says that she has only seen the appellant fleeing away. In her ferd-beyan, she has claimed that several other villagers had arrived after she raised cry, however, we find that the villagers Retia Oraon and her daughter namely, Tibi Orain have not been examined. PW-2 namely, Letiya Oraon on his own account is not an eye-witness. In her ferd-beyan, she has claimed that several other villagers had arrived after she raised cry, however, we find that the villagers Retia Oraon and her daughter namely, Tibi Orain have not been examined. PW-2 namely, Letiya Oraon on his own account is not an eye-witness. He has also seen the appellant fleeing outside the house of the informant. In a case involving the offence of murder crime weapon, serological report and some times motive become relevant, but in a case in which the prosecution has led consistent evidence through eye-witnesses recovery of the crime weapon or non-production of a serological report may not be so relevant. In this case the informant who has been projected as an eye-witness by the prosecution has stated that she has seen the appellant assaulting her husband, however, in her cross-examination she has said that she has seen the appellant fleeing away outside her house. But nothing much turns on this. At least the prosecution has been able to establish that the accused was found fleeing away outside the house of the informant. The prosecution has led consistent evidence on this point. This circumstance alone could not have been sufficient to convict the appellant, however, the informant has stated that she had handed over the wooden log with which the knife was tied up to the investigating officer and there was no time-gap or any intervening circumstance which would have introduced the possibility of another person committing the crime. The appellant was immediately apprehended by the villagers and handed over to the police. All these circumstances taken together unerringly point out to the guilt of the appellant. It has also been brought on record that the appellant had a motive behind assault on the deceased. It is stated that the appellant had a grudge against the deceased that he was practicing witch-craft due to which his wife and son fell ill. In a case like this, we are of the opinion that the prosecution has established complicity of the accused in the crime. 7. Now the question is whether the appellant can be convicted for the offence under section 302 IPC. 8. The doctor-PW-5, who has conducted autopsy over the dead body, has found the following injuries on the deceased: Incised wound: (1) 10 x 2 cm x bone deep Rt. 7. Now the question is whether the appellant can be convicted for the offence under section 302 IPC. 8. The doctor-PW-5, who has conducted autopsy over the dead body, has found the following injuries on the deceased: Incised wound: (1) 10 x 2 cm x bone deep Rt. lateral neck situated transversely, cut the soft tissues, blood vessels oesophagus an angle of right mandible completely. (2) 5 x 2 cm x soft tissues of Rt. side of the neck situated vertically cut the soft tissue and blood vessel. Opinion: (1) Incised wound is ANTEMORTEM. (2) Caused by sharp cutting heavy weapon. (3) Death is due to hemorrhage and shock as a result of above noted incised wounds. (4) Time since Death 12 to 36 hrs. from the time of P.M. examination. 9. The injuries found by the doctor on the deceased are grievous, though the doctor has not given any such opinion. The doctor has also not found one out of the two injuries sufficient in the normal course to cause death. The appellant thus cannot be attributed of the requisite intention to cause death. 10. Having examined the records of the case, we are of the considered view that the conviction of the appellant namely, Sanika Lohra under section 302 simplicitor is not proper, rather he is liable to be convicted under section 304 Part-II IPC. Accordingly, we set-aside the judgment of conviction under section 302 IPC and the order of sentence of R.I for life, both dated 03.06.1995 in Sessions Trial No. 41 of 1994 passed by the learned 7th Additional Judicial Commissioner, Ranchi. 11. The appellant-Sanika Lohra is convicted under section 304 Part-II IPC and sentenced to undergo R.I. for 07 years. 12. In the result, Criminal Appeal No. 89 of 1995 (R) is partly allowed. The bail-bonds furnished by the appellant, who has already served sentence of about 10 years, stand discharged. 13. We appreciate the efforts of Ms. Amrita Banerjee, the learned Amicus who has prepared notes on the prosecution evidence and ably assisted the Court arguing this criminal appeal on behalf of the appellant. 14. The assistance rendered by Mr. Hardeo Prasad Singh, the learned A.P.P. is also appreciated. 15. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills. She shall be paid Rs. 14. The assistance rendered by Mr. Hardeo Prasad Singh, the learned A.P.P. is also appreciated. 15. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills. She shall be paid Rs. 5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017. 16. Let the lower-court records be transmitted to the court concerned, forthwith.